There can be no public disclosures prior to obtaining a filing date for your patent otherwise your invention is not patentable.

Your invention must be: –

1. New i.e not done before to include, inter alia, non obvious modifications to existing invention;

2. Inventive – very subjective assessment and;

3. Capable of commercial applicability.

The successful grant of a patent effectively grants the inventor a monopoly over the control of the use of your invention for a stated period of time (10 years for a short term patent or 20 years for a long term patent).

The inventor then has the option of licensing or selling the patent to the manufacturer and/or may prevent the manufacturer from using the invention, usually until financial agreement is reached.

Typically 4 stages comprise the ‘innovation chain’ from invention to successful commercial implementation as follows: –

1. The genesis of the invention is put into effect in a very small scale experimental scenario.

2. Pilot project or prototype where the original drawings/scale has been extended to demonstrate that the ideas work, albeit again in a laboratory situation.

3. Working production process/model where the idea is put onto the “factory floor” to show that it can work in situ. This is not a fully developed system but shows that significant economic benefits may be achieved.

The significance of demonstrating a production process or model under real working conditions is crucial to achieving the commercialisation of an invention and the most difficult stage for the inventor to demonstrate.

4. Product on the market which is the final stage.

It is advisable to apply for a patent at stage 1 – given that the requirement of non-prior publication – to stake a clear claim to your idea before you begin to test the market.

A non-disclosure agreement should be put in place prior to discussing your invention with any person(s) as any disclosure to the public in advance of obtaining a filing date may invalidate your patent application.

A patent may also be revoked even after being successfully granted should a competitor decide to oppose its validity (on the grounds of prior disclosure) and/or in the defence by a competitor of any infringement proceedings taken by the owner of the patent.

It is not possible to bring infringement proceedings until a patent has been granted although the words “patent pending” (which may be used upon obtaining a filing date from the Patent Office) serves to act as a deterrent given that damages (or compensation) in any subsequent successful litigation taken upon the granting of the patent may be backdated to the date of the infringement. Always be mindful that you are instructed by the actual inventor and not someone looking to capitalize on the invention of another person who may not be interested in seeking a patent as all the royalties and benefits will accrue to his employer (and not to him/her) – an area of the law this firm believes needs to be improved upon.